Email from OCR to Sentinel and Enterprise Reporter Michael Hartwell

By on May 23, 2013

———- Forwarded message ———-
From: Thomas, David <David.Thomas@ed.gov>
Date: Thu, May 23, 2013 at 4:37 PM
Subject: RE: theFIRE.org response
To: Michael Hartwell <[redacted]>

Hi Michael, here is our statement addressing your query:

OCR and DOJ’s May 9 Resolution Agreement and letter to the University of Montana require that the University take steps to prevent sexual harassment from creating a hostile environment for any student, and to eliminate and redress any hostile environment that arises.

The agreement and letter are entirely consistent with the First Amendment, and did not create any new or broader definition of unlawful sexual harassment under Title IX or Title IV.

After an extensive investigation, the United States determined that sexual harassment and sexual assaults of female students at the University of Montana were interfering with their ability to participate in or benefit from the school’s program equally.

Some of the harassed students suspended their academic work and even left the University altogether, and several of the confirmed assaults were well known to other female students. Together these incidents created a hostile environment on the Missoula campus, based on sex, that affected many women, including by making them feel unsafe in certain areas of campus.

Despite the University’s efforts to address this hostile environment, it had not yet been fully remedied.

Consistent with OCR’s previous, well-established guidance, the May 9 letter explains that “sexual harassment” is unwelcome conduct of a sexual nature but that sexual harassment does not create a “hostile environment” unless the harassment is severe, pervasive, or persistent, such that it denies or limits the student’s ability to participate in or benefit from the school’s program. To create a hostile environment, something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive must exist. Rather, the conduct or speech must also deny or limit a student’s ability to participate in or benefit from the educational program.

At the same time, it is important that students are not discouraged from reporting harassment because they believe it is not significant enough to constitute a hostile environment.

Therefore, our letter and agreement require that the University of Montana’s policies and procedures consistently articulate the University’s prohibition of sexual harassment that creates a hostile environment. Students will be allowed to bring complaints when they have been subjected to unwelcome sexual conduct, and the University will evaluate whether that harassment has created a hostile environment. Making this determination requires, as it has in the past, the University to examine both whether the conduct is objectively offensive and its subjective impact on an individual.

In preventing and redressing discrimination, schools must formulate, interpret, and apply their rules in a manner that respects the legal rights of students and faculty, including the First Amendment. We will support the University of Montana in its efforts ensure that any policies it adopts will comply with the Constitution.

Cases: Departments of Education and Justice: National Requirement for Unconstitutional Speech Codes